McNae’s essential law for journalists – Chapter 1

The UK as a ‘free press’ society:

As a democratic society the censorship that represses the freedom of expression in some other nations, (such as China which operates under an authoritarian regime), does not affect journalists here in the UK. Mark Hanna and Mike Dodd refer to a journalist’s position as a ‘public watchdog’ as the media represent the eyes and ears of the general public. This, and the importance of ‘free media’, are expressed as essential elements in maintaining parliamentary democracy.

In the UK, there are currently an increasing number of statutes. A statute is an Act of Parliament, which is considered primary legislation and modifies or replaces common law. Secondary or delegated legislation allows the government to make changes to the law using powers conferred by an Act of Parliament. Statutory instruments form the majority of this secondary legislation.

As well as ensuring that people are properly informed about what is being done in their name by those who govern them journalists are said to safeguard the principle of an independent judiciary by reporting what is going on in the courts.

Custom and Precedent

Custom – The reforms of Henry II (1154-89):

The English legal system began to take shape in the Middle Ages, primarily through the actions of Henry II who appointed royal judges to administer the ‘law and custom of the realm’. It was Henry’s establishment of permanent professional courts at Westminster and in the counties which eventually developed into what we consider common law. Judge-made common law operated as the primary source of law before Parliament acquired legislative powers to create statutory law.

Precedent

Lawyers record the decisions applied to common law by judges. The UK has a hierarchy of courts, allowing a decision made by a lower court to be challenged by appeal to a higher court. The decisions made by the higher courts are known as precedents and these are binding on all lower courts. Precedents therefore evolve and develop the common law.

Hierarchy of the courts:

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A Supreme Court judgment binds all UK courts, with the exception of Scottish criminal courts. Below the Supreme Court, the Court Appeal’s decisions bind the High Court and the lower courts, and High Court decisions bind all lower courts.

European regulations and directives:

As part of the European Union, EU treaties and other EU law are part of UK law as the regulations and directives agreed by the EU’s Council and its Parliament are binding on all member states.

The Council of Europe was created to promote individual freedom, political liberty and the rule of law. It’s work led to The European Convention for the Protection of Human Rights and Fundamental Freedoms, which sets out rights which must be protected by signatory states. The Council also gave rise to the foundation of the European Court of Human Rights which sits in Strasbourg. Among the rights the Convention guarantees, is the right to freedom of expression and this is considered the most important part for journalists.

The Human Rights Act 1998 came into force on the 2nd October 2000 and puts the Convention into UK law, increasing its influence on UK courts.

Divisions of the law:

There are two main division of the law – criminal and civil. However, on occasion the two overlap.

  • Criminal law handles offences against the whole community and thus against the sovereign. In criminal courts a defendant is prosecuted, pleads guilty or not guilty, and will be acquitted or convicted (either to be fined or jailed).
  • Civil law deals with disputes between individuals and organisations, and includes the redress of torts – wrongs suffered – including medical negligence, defamation and breach of copyright. It is also in place to resolve disputes between couples such as divorce actions. In civil courts a claimant sues a defendant or respondent, who admits or denies liability, and is found either liable (to pay damages) or not liable.

The legal profession:

Lawyers may be either solicitors or barristers.

  • Solicitors deal directly with the client and represent them in court (solicitor-advocates may appear in the higher courts). Solicitors are there to advise, prepare the client’s case, and take advice from a barrister when deemed necessary.
  • Barristers are known as ‘counsel’. In the higher courts, the Crown courts and county courts (with the exception of magistrates court), they are permitted to wear a wig and gown. Those who have been practicing for the minimum of ten years may apply to the Lord Chancellor for appointment as a Queen’s Counsel (allowing them to use the letter QC after their names).

High offices in law:

To help ensure that the judiciary is independent of political influence, and that the government is subject to the rule of law, the nation’s ‘executive’ – the government – remains separate. The head of the judiciary is the Lord Chief Justice. The UK Government is advised on law by the Attorney General, who also has a role in prosecutions – including proceedings against media organisations for contempt of court.

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About brackenstockley

Contributor to the JusticeGap and WINOL. Currently studying journalism at the University of Winchester (Year Three).
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